Australia has been a vocal advocate for the abolition of the death penalty. Indeed, after the executions of Myuran Sukamaran and Andrew Chan in Indonesia, the Minister for Foreign Affairs, the Hon Julie Bishop MP, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire and report on Australia’s Advocacy for the Abolition of the Death Penalty.

The Committee tabled its report, A world without the death penalty, on 5 May 2016. The report can be accessed here.

Despite Australia’s stance, what happens when Australia receives an extradition request from a nation state, such as Malaysia, that actively uses the death penalty as a form of punishment for offenders? What is Australia’s obligation in this situation? And will Australia be forced to extradite either an Australian or Malaysian national back to Malaysia to face charges where the death penalty is a possible sentence?

Does Australia have an Extradition Treaty with Malaysia?

Yes

The Treaty between the Government of Australia and the Government of Malaysia on Extradition (Putrajaya, 15 November 2005) and an Exchange of Notes between the Government of Australia and the Government of Malaysia on the Treaty on Extradition (Kuala Lumpur, 7 December 2005) (the Extradition Treaty with Malaysia) provides for the surrender of an accused or convicted person to the other Party to face criminal charges or serve a sentence.

What documentation needs to be provided in support of an application?

Article 4 of the Treaty provides that in support of an extradition request, the Requesting Party shall provide:

The details necessary to establish the identity and nationality of the person sought including, when possible, photographs and fingerprints and a statement of the current location of the person, if known;

A statement of each offence for which extradition is sought;

A statement of the acts and omissions which are alleged against the person in respect of each offence for which extradition is sought;

The text of the laws creating each offence;

The text of the laws describing the penalty which may be imposed; and

A statement as to whether there is any limitation period in respect of proceedings or punishment

Will Australia Extradite to Malaysia if the Death Penalty is a possible sentence?

The short answer is, No. Australia will not extradite to Malaysia unless there has been consultation and an agreement between the two nations that the person charged will not face the death penalty.

Indeed, Article 3(2) of the Treaty states:

In cases in which a person could be subject to capital punishment in the Requesting Party would not be subject to capital punishment in the Requested Party for the same offence under the laws of the Requested Party, no request for extradition shall be submitted without prior consultation and agreement by both parties to make such a request.

But what of Australia’s International Obligations?

Australia has ratified the Second Optional Protocol to the Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the Death Penalty. By ratifying this protocol, Australia has committed itself to opposing the death penalty.

The United Nations Human Rights Committee has held that “countries that have abolished the death penalty, [have] an obligation not to expose a person to the real risk of its application”[1]

Indeed, the Treaty provides express consideration of Australia’s international obligations

Article 3(1)(f) of the Treaty states:

Extradition shall not be granted in any of the following circumstances:

(f) If it may place the Requested Party in breach of its obligations under international treaties

[1] In Judge v. Canada, the United Nations Human Rights Committee (HRC) decided that Canada had breached its obligations under article 6(1) of the ICCPR by deporting Mr Judge “without ensuring that the death penalty would not be carried out”. The HRC stated: For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence will not be carried out. Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003) at [10/4].

What about the Extradition Act?

The extradition Act expressly prohibits Australia from extraditing to a nation state where the death penalty could be a possible sentencing option.

s15B(3)(b) of the Extradition Act 1988 (Cth) provides:

(3) The Attorney‑General may only determine that the person be surrendered to the extradition country concerned if:

(a) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and

(b) the Attorney‑General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.

Case Example – Sirul Azhar Umar

Malaysian national Siral Achar Umar was convicted in absentia and sentenced to be hanged for murdering Altantuya Shaariibuu in 2006. Mr. Umar fled Malaysia in 2014.

Mr. Umar was arrested in Brisbane due to Visa violations and was arrested due to an Interpol Red Notice Alert on his name. Since his arrest in 2015, Mr. Umar has been detained at Villawood detention centre, and has been awaiting a decision regarding his protection visa from immigration authorities.

No official extradition request has been made by the Malaysia government and as such, Mr. Umar remains detained at Villawood. As negotiations between Australia and Malaysia are ongoing, Australia will need assurances from Malaysia that Mr. Umar will not be subjected to the death penalty if he is to be extradited.

How Can Nyman Gibson Miralis assist you?

Nyman Gibson Miralis specialise in all aspects of extradition law. By its very nature, extradition is a transnational process. Our criminal law specialists are experts in transnational law and have represented persons challenging extraditions to the US, South Africa, Europe, England, Asia and Mexico.